This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-97-1238

Erich David Graumann, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed December 2, 1997

Affirmed

Lansing, Judge

Hennepin County District Court

File No. 96064245

John M. Stuart, State Public Defender, Susan K. Maki, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Hubert H. Humphrey III, Attorney General, 102 State Capitol, St. Paul, MN 55155 (for respondent)

Michael O. Freeman, County Attorney, Jean E. Burdorf, Assistant County Attorney,

C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

Considered and decided by Lansing, Presiding Judge, Davies, Judge, and Willis, Judge.

U N P U B L I S H E D O P I N I O N

LANSING, Judge

In an appeal from the denial of postconviction relief, Erich Graumann challenges the imposition of an upward sentencing departure. Because the evidence supports the district court's finding that Graumann's conduct was significantly more serious than that typically involved in second degree burglary, we affirm.

FACTS

Erich Graumann pleaded guilty to one count of second degree burglary in September 1996 for burglarizing the residence of his former girlfriend. The court imposed a thirty-six month sentence, an upward departure equal to twice the guidelines' presumptive sentence. Execution of the sentence was stayed, subject to specific conditions. In October 1996, Graumann admitted that he had violated the conditions and the court revoked the stay of execution and ordered the sentence served.

Graumann filed a petition for postconviction relief in May 1997 alleging that the district court abused its discretion when it originally imposed the thirty-six month sentence. Graumann further alleged that the district court refused to consider mitigating psychological factors. The district court denied Graumann's petition and he appeals the denial, asserting the court (1) made erroneous findings, (2) impermissibly included postsentencing material as part of the appellate record, and (3) abused its discretion in sentencing.

D E C I S I O N

This court's review of a grant or denial of postconviction relief is limited to whether sufficient evidence exists to support the postconviction court's findings. Roby v. State, 531 N.W.2d 482, 483 (Minn. App. 1995) aff'd, 547 N.W.2d 354 (Minn. 1996). The decision of the postconviction court will not be disturbed unless the court abused its discretion. Miller v. State, 531 N.W.2d 491, 492 (Minn. 1995). If the district court makes specific findings on each of the petitioner's claims, we independently review the record as to each claim. Perkins v. State, 559 N.W.2d 678, 685 (Minn. 1997).

I

The district court found that Graumann failed to establish that his release would neither present a danger to the public nor be incompatible with the welfare of society. Defendants seeking post conviction relief need to establish these elements only if they are seeking a retroactive application of the sentencing guidelines under Minn. Stat. § 590.01, subd. 3 (1996). Bixby v. State, 344 N.W.2d 390, 392 (Minn. 1984). Graumann is not seeking retroactive sentencing; he is using the postconviction remedy to challenge a sentencing departure under Minn. Stat. § 590.01, subd. 1 (1996). But the superfluous finding, which was listed separately from the grounds for departure, is not itself reversible error; the departure is justified or prohibited depending on whether it is supported by sufficient evidence. Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985).

II

The appellate record consists of "the papers filed in the trial court, the offered exhibits, and the transcripts of the proceedings, if any." Minn. R. Crim. P. 28.02, subd. 8 (1997). Graumann's postconviction file contains letters written by Graumann while he was in the workhouse. These letters were admitted into evidence at Graumann`s revocation hearing, and he concedes that the letters were relevant to that determination. But he argues that because the letters were not written until after he was sentenced, it is error to allow them to remain in the record as part of the postconviction appeal.

We agree that the letters are not relevant to the postconviction issues. But the inclusion of the letters in the file is neither error nor prejudicial. See State v. Rean, 416 N.W.2d 790, 793 (Minn. App. 1987) (exhibits are part of appeal record whether accepted into evidence or rejected), rev'd on other grounds, 421 N.W.2d 303 (Minn. 1988), review denied, (Minn. April 14, 1988). The letters could not have affected the court's decision to depart upward in its sentencing because they were not in existence at the time of sentencing.

III

Graumann's principal argument is that the district court abused its discretion by imposing a double departure. When a district court departs from the presumed guidelines' sentence, the reasons for the departure must be stated on the record at the time of sentencing. Williams, 361 N.W.2d at 844. On review, if the reasons given by the district court are improper or inadequate, but there is sufficient evidence in the record to justify the departure on other proper grounds, the departure will be affirmed. Id.

In its order denying Graumann's petition for postconviction relief, the district court acknowledged Graumann's history of harassing his former girlfriend was not a proper ground for an upward departure. The court stated three other reasons for departure: (1) Graumann violated an order for protection in committing the burglary; (2) he inflicted serious psychological injury on the victim; and (3) he acted with particular cruelty.

In burglarizing his former girlfriend's residence, Graumann violated an order expressly prohibiting him from going to her home. Violation of an order for protection is an aggravating circumstance. State v. Coley, 468 N.W.2d 552, 556 (Minn. App. 1991). In addition, this burglary was more serious than a typical burglary offense. Ordinarily a burglar enters a dwelling to steal. Graumann, however, broke into his former girlfriend's residence intending to terrorize her. This motivation and its intended effect support the district court's finding that Graumann acted with particular cruelty and that Graumann's conduct inflicted serious psychological injury.

Graumann alleges the district court failed to consider his psychological condition as a factor offsetting the aggravating factors. The district court examined three separate psychological evaluations and found nothing in them that indicated Graumann lacked substantial capacity for judgment at the time of the offense.

Graumann violated a restraining order and committed the burglary with the intent to intimidate and scare the victim. On these facts the district court did not abuse its discretion when it imposed an upward departure. Graumann has also filed a pro se brief raising issues related to the length of his sentence. For the reasons stated in our analysis, we conclude that the upward departure is supported by the record.

Affirmed.